This one is for the ISDS!

In all the criticism of the ISDS system and the need to search alternatives like state to state mechanisms or domestic fora, this blogpost argues that ISDS is important for access to justice. 

It argues that inter-state mechanisms or domestic courts do not provide a viable alternative. It also argues that ISDS is not relevant only to less developed legal systems but also highly evolved ones since international investors are treated differently by domestic law.

Inter-governmental or inter-state mechanisms, such as diplomatic protection, or formal inter-state dispute settlement, in turn, do not provide an adequate substitute for an ISDS mechanism. Affected investors regularly do not have a right vis-à-vis their government to have their claim espoused against a foreign sovereign, making investors dependent on the goodwill of their home country and likely prejudicing smaller compared to larger investors. Giving investors access to an international forum is the most effective means to enforce the substantive rights granted under IIAs.

The critique that investor obligations are not as important as their rights in IIAs and BITs is sought to be answered by a caveat that the asymmetry should be addressed by providing access to ISDS for claims against foreign investors and not just for them

An appropriate solution to the asymmetry problem could then consist in creating investment dispute settlement mechanisms, for example as part of the current UNCITRAL process, that are sufficiently open, so that its jurisdiction can cover not only claims by, but also claims against, foreign investors. This could constitute an important step in addressing gaps in investor accountability and provide comprehensive access to justice in respect of international investment projects for all actors affected.

Well, some food for thought?